THE INFLUENCE ^ 


HABITS OF THOllGHT 

CimgrM 
8«r(i>! Ri<car4 

""" DECl^ m 

OUR INSTITUTIONS. 


SECOND ANNUAL ADDRESS 

DELIVERED BEFORE THE 

South Carolina Bar Association, 



HON. THOMAS M. COOLEY, 

■ H 

OF 


ANN ARBOR, MICHIGAN. 







» 


* 


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\ 





- 4 







THE 

INFLUENCE OF HABITS OF THOUGHT UPON OUR INSTITUTIONS. 


SECOND ANNUAL ADDRESS 

DELIVERED BEFORE THE 

South Carolina Bar Association, Columbia, S. C., 
2d December, 1886 , 

BY 

Hon. THOMAS M. COOLEY, 

OP 

Ann Arbor, Michigan. 


Mr. President and Gentlemen of the Association: 

The historian Gibbon, in his account of the decline and fall of 
the grandest of ancient empires, has ventured the assertion that the 
united reigns of the Antonines were possibly the only period of 
history in which the happiness of a great people was the sole 
object of government. When it is remembered that government 
has no proper purpose but the happiness of the people, the 
assertion is likely at first to strike us with some degree of amaze¬ 
ment; but as we reflect that all power and the management of 
all public affairs must be confided to the hands of fallible men, 
and that official character can neither convert into strength their 
weakness nor supply their imperfections, we are sorrowfully 
forced to acknowledge that the philosophical historian may not 
have spoken without warrant. If the Antonines in their public 
conduct succeeded in subduing altogether their individual selfish¬ 
ness, a thoughtful writer of the present day may be justified in 
what he says of the greater of the two, that Marcus Aurelius is 
perhaps the most beautiful figure in history—one of those consol¬ 
ing and hope-inspiring works which stand forever to remind our 




2 


SOUTH CAROLINA BAR ASSOCIATION. 


weak and easily discouraged race how high human goodness and 
perseverance have been carried and may be carried again. A 
modern consensus of opinion, however, will, in all that pertains to 
patriotism and public virtue, place Washington by his side; and 
the greatest of the moderns and the purest of the ancients, as 
regards the motives to public conduct, may stand together above 
the reach of envious or malicious detraction, and be crowned with 
the reverent and unanimous homage of successive ages. 

THE PRIVILEGED CLASSES. 

In hereditary governments of monarchical or aristocratic form 
it occasions no surprise that the privileged classes come at length 
to look upon the right to govern as partaking of the nature of 
private property, or that when the hereditary king is dethroned 
or the privileged chief set aside, the parties displaced regard it 
as a personal rather than a general injury. But such is the force 
of habit that the non-privileged class may be found taking this 
view also, though it is a view hostile to all their just rights. The 
world is not likely soon to forget how for half a century after 
the English Kevolution of 1688 the perpetual refrain of Jacobite 
song among all classes of society was an expression of passionate 
longing for the time when the King should come to his own.^^ 
The*builders of Democratic institutions would not be likely to 
anticipate the springing up under them of the like notions, for 
Democratic government is by all for all, and the agent who for 
the time being wields public authority will be obligated and 
therefore expected to express in his action the public will for the 
public good, and to do so under constitutional limitations and 
forms. In America, however, we have seen, with the rise of 
party, a vicious notion not unlike it take root and rapidly grow 
to fearful power. The party successful in the latest election has 
for the time been looked upon as constituting, in a certain sense, 
a privileged class, and entitled as such to seize upon public trusts 
and appropriate them as spoils of party warfare. The notion 
was corrupting and Anti-Democratic, but for two generations it 
was so much a habit of mind with the American people to 
accept it as a legitimate incident to free institutions, that when 
a vigorous attempt was made to uproot it there seemed to be a 
necessity that the people should be called back for instruction in 

§1^ 

wiw 

il, im 


ANNUAL ADDRESS BY HON. THOMAS M. COOLEY. 


3 


the very rudiments of representative institutions. To many 
persons even yet the doctrine that the party in power holds the 
Government and its honors for party advantage, and that in the 
performance of public duty party interest may be first consulted, 
is so interwoven with the political ideas of a life-time, and con¬ 
nects itself so closely with the recollections of and reverence for 
their old leaders, that to the end of their days it will perhaps 
continue to he accepted as the true theory of practical politics, 
and be regarded as in some sense a part of an unwritten 

fundamental law of the Union. 

THE PEOPLE AND THE CONSTITUTION. 

All unwritten fundamental law ! Is there such a thing in 
America? The phrase sounds strange to the American ear. 
Our fathers recognized no such law, and made no provision for 
there being one at any time. Laws must, no doubt, in a free 
country emanate from the thoughts and desires of the people, 
and a beneficent law is likely to grow up irrespective of formal 
enactments; hut our fathers believed that for the purposes of a 
fundamental law there would be peculiar excellencies in embody¬ 
ing the best thought of the time respecting the essential princi¬ 
ples and framework of government in carefully worded terms, 
including in the written instrument everything that should be 
recognized as pertaining to the Constitution, and leaving nothing 
for tradition to bring forward from the misty past, nothing to be 
lugged in by uncertain precedent. Emphatically was this meant 
to be the case as regards the government of the nation, whose 
powers it was agreed should be enumerated for it in the Federal 
Constitution, so that by the very enumeration that instrument 
would set limits beyond which the Government could take 
neither ell nor inch. The Federal authority would thus be per¬ 
petually kept within assigned limits, and accretion of power by 
imperceptible stages would be impossible, because the landmarks 
could neither be removed, or hidden, or defaced. The State 
authority would at the same time be safe within the sphere 
reserved; for with the bounds permanently designated nothing 
could be lost by imperceptible decay. The founders were not 
so conceited as to suppose their work could stand unchanged for 
all time, but they agreed that changes when desired would be 


4 


SOUTH CAEOLIHA BAR ASSOCIATION. 


made deliberately and by formal enactment of the States, and 
not otherwise. 


THE LAW OF CHANGE. 

Such was the structure the fathers devised and created, and it 
seemed to their sober judgment so well proportioned and of such 
solidity that they might reasonably expect that it would with¬ 
stand indefinitely the trials and vicissitudes which might assail 
it. But whether they took sufficiently into account the various 
forces which continually, from day to day, operate upon institu¬ 
tions, bringing in now, perhaps irregularly, an obvious change 
known and seen of all, and again an unperceived change that 
slowly but surely may become a revolution, or whether they con¬ 
sidered these forces at all as possibly affecting the solidity of 
their work, we can hardly at this time determine. We may 
assume it to be certain, however, that men like Madison, and 
Hamilton, and John Adams, and Morris, and Dickinson, 
who had made the science of government a study, were not 
ignorant of the fact that there never yet in the history of the 
world had been an instance of a stationary Constitution; of a 
Constitution so fixed and indexible that neither the vicissitudes 
of public events nor the changing phases of political sentiment 
could in the least disturb its balance of power, or add to or take 
from the force of any of its commands or inhibitions. They 
could not have failed to note in the course of their historical 
studies that oftentimes the Constitutional changes were most 
complete when unacknowledged, as in Kome the Kepublic passed 
into an imperial despotism ages before the forms of freedom 
were dispensed with. And if these great men had been living a 
little later they might have seen in the experience of France 
that the most carefully prepared and popular written Constitu¬ 
tion is not more secure than any other against sudden, violent 
and destructive changes, and may, indeed, be more easily over¬ 
turned by the assaults of faction than it possibly could be if its 
principles, having their roots deep in the nature of the people, 
were only expressed in unwritten usages. But whatever the 
people, whatever their circumstances, whatever the nature of 
their institutions, the one law always present, always making 
itself felt and acknowledged in history, has been the law of 


ANNUAL ADDRESS BY HON. THOMAS M. COOLEY. 


5 


change. In vain the Locrian law-giver ordained that the pro¬ 
poser of a new law should appear with a rope about his neck, 
ready for immediate execution, if his proposal failed of accept¬ 
ance; in vain Justinian denounced the punishment of forgery 
against the commentators who should venture to interpret or 
assume to improve upon his work in jurisprudence. The work 
of construction was no sooner completed than some new process 
of formation began, and that people was most fortunate who 
best succeeded in protecting the formative process against sudden 
and violent changes. 

It was the just and peculiar glory of England that the un¬ 
written Constitution of the realm, in its unfolding from the 
uncertain seed-planting of a harhorous age, had kept even pace 
with advancing thought among its people, being neither hampered 
in its growth by formal but obsolete documents, nor checked or 
seriously perverted by party or revolutionary violence. But the 
American Constitution did not emerge from the obscurity of 
distant ages; it was the product of a single act of creative wisdom, 
and the founders could not, if they would, have calculated upoi^ 


imperceptible changes. Agreement upon the whole charter was 
necessary, and had it not been understood that the written words 
of agreement would stand for all time unchanged, in meaning 
arid obligation, formally and by the method agreed upon, 
amended, the whole attempt at Constitution-making must have 
fallen to the ground, and the imperfect confederation must have 
been left to struggle a little longer for precarious and unprofitable 
existence. 

When thus, wisely and abundantly as would seem, the need of 
such change as might be demonstrated by experience or required 
by circumstances was provided for, the founders had a right to 
expect that no others would take place unless by revolution; and 
they might justly hope that they had made revolution impossible, 
when a peaceful method of effecting radical reforms was thus 
brought by the Constitution itself within the reach of the popular 
will. 

Nevertheless, the possibility of change was plain, even though 
the words remained unaltered. Tliere would be change if deliberate 
usurpation should be acquiesced in until on all sides it should 
come to be accepted as rightful, the contention against it, if any, 
being at last abandoned; and the effect might be the same where 




6 


SOUTH CAKOLIHA BAH ASSOCIATTOK'. 


the failure to observe the proper limitations of power had been 
merely careless or inadvertent. In either case the law would 
nominally stand unchanged, but as a practical fact the law would 
be what the people understood it to be and what they obeyed. 
We may think we have the Constitution all before us; but for 
practical purposes the Constitution is that which the Govern¬ 
ment in its several departments and the people in the performance 
of their duties as citizens recognize and respect as such, and 
nothing else is. There is, says Machiavel, quoted with approval 
by Bacon, no trusting to the forces of nature nor to the bravery 
of words, except it be corroborated by custom. The old maxim 
is to the same purpose. Laws are nothing without manners, 
that is to say, without customary obedience. And Mr. Bentoh 
was only a little extravagant when he once said that if the law 
were in the heart of the people he cared not to have it on the 
statute book. 

TERRITORIAL ANHEXATIOH AHD HATIOHAL BANKS. 

Consider how this may be in a few cases taken for illustration. 
Does the Federal Constitution authorize the acquisition of foreign 
territory? Mr. Jefferson, when leader and oracle of the domi¬ 
nant party in the country, said Ah, and able men among his 
adversaries agreed with him. Nevertheless he annexed a vast 
region, and the people approved the act, and made it a finality. 
A little later the Floridas were annexed, then Texas, then por¬ 
tions of Mexico. Who does not see that the question now is 
altogether a different one from what it was when Mr. Jefferson 
first raised it? Who will venture now to say that the Federal 
Constitution will not warrant what so often has been done under 
it? The power is settled as conclusively as in the nature of 
things is possible. 

Another illustration may be even more appropriate than this. 
Does the Federal Constitution empower Congress to create 
National banks? Before the civil war half the people of the 
country would have said No, with an emphasis which policy could 
not moderate or judicial decisions weaken. But since the existing 
National bank system was established the No has been growing 
fainter and fainter, and has almost ceased to be heard. To call 
up the old Constitutional controversy and impart to it tlie old 


AKNUAL ADDRESS BY HOK. THOMAS M. COOLEY. 


1 


vigor would be as impossible now as to summon living trees from 
the ashes of the fireside. The dispute has been settled—not by 
the Courts, but by the people. Marshall expounded, and for 
a time the people put aside his ruling; for though kindled with 
his genius and fed by the eloquence of the Pihckheys and 
Websters of the Bar, the gladsome light of jurisprudence ” 
can be little more than a phosphorescent glow until the people 
appropriate it and make it their own. Ceryahtes says that 
every one is the stin of his own works.” This is more em¬ 
phatically true of an instrument of government than it can 
possibly be of a natural person. What it takes to itself, though 
at first unwarrantable, helps to make it over into a new instru¬ 
ment of government, and it represents at last the acts done 
under it. 


the ukioh ahd the states. 

But usurpation, whether intentional or the result of honest 
misconstruction, has had far less to do with disturbing the 
original equilibrium of National and State powers than some 
other causes which were inevitable and which only very imper¬ 
fectly could have been anticipated. When the Federal Constitu¬ 
tion was framed by far the larger proportion of all the concerns 
of Government were left to the control of the several States, and 
it is curious reading now, when we find in the letters and dis¬ 
cussions of the period how concerned were some of the ablest 
statesman lest the Federal Government in its weakness should 
prove unable to resist encroachments. Evidently there was an 
expectation that the States would regard it as an object of natural 
antagonism, and as opportunity offered like a pack of wolves 
would pounce upon the living structure of union and, if possible, 
snatch from it vital powers. But nothing seems more obvious 
now than that from the first it should have been seen that the 
immense possibilities of the future lay unfolded in the grants of 
Federal power, not concealed among the reserved rights of the 
States. It was indeed perceived that this was true as regards the 
war power, and when Hamilton was accused of desiring war as 
a means whereby the Federal authority might be improperly 
strengthened, the accusation was in itself an admission that 


8 


SOUTH CAEOLIHA BAK ASSOCIATION. 


within the legitimate compass of that power there were consoli¬ 
dating possibilities which could not be fully provided against. 
But the same is almost equally true of some other grants of 
authority made to the Federal Union. 

COMMERCE BETWEEN THE STATES. 

Consider for a moment the power to regulate commerce between 
the States. IIow few and how simple were the occasions or the 
opportunities for the exercise of that power when the Federal 
Government was first formed. The commerce itself was small 
and was carried on in primitive ways. Travel was limited, and in 
some States monopolies in the carriage of passengers were granted. 
In the tlnrd year of the Union a proposition in Congress to 
authorize stage wagons to carry passengers was voted down 
because it might conflict with the privileges granted by the 
States. But by and by came the steamboat, and when, at a 
touch of the magic pen of the great Chief Justice, State monop¬ 
olies in steam navigation vanished into nothingness how wonder¬ 
fully the power to regulate commerce swelled into importance! 
A little later came the iron horse, with his tremendous energies, 
moving with the speed of the wind and with a strength like that 
of destiny, but in all its vast activity submissive to Federal legis¬ 
lation when the will to control is expressed. An then, as year 
by year new inventions keep coming to modify and quicken 
industrial and social life, this power of regulation naturally, if 
not inevitably, takes them under its protection; so that the 
statesman who contemplates the power enlightened by the 
wonderful contrivanees whereby commerce is now enabled to 
accomplish such marvels, seems to perceive new meaning in the 
grant and sees it grow before his eyes, not from the expansion of 
latitudinarian construction, but as a necessary consequence of 
new subjects presenting themselves for its attention, and new and 
wonderful facilities of intercourse demanding its care. So day 
by day the Government control of Inter-State commerce takes 
upon itself importance and enlists more and more the interest 
of all the people. Its possibilities for the future seem almost 
illimitable: the imagination may revel among them but sober 
calculation is altogether at fault. Nevertheless, the power now 
so great, and potentially so much greater, is the same power 


ANNUAL ADDKESS BY HON. THOMAS M. COOLEY. 


9 


which by the Constitution was granted, and not any new or 
usurped power. What has proceeded from it has flowed legiti¬ 
mately, and as a result of the unforeseen being discovered, brought 
forward and utilized. Not from usurped territory, but out of 
the old flelds * * cometh all this new corn.’^ In our Country, as 
elsewhere, steam and electricity, the imponderables of the material 
world which have been subdued and domesticated in the service 
of man, have made unexpected and wonderful contributions to 
the comfort and happiness of the people; but they have at the 
same time been equally busy with laws and institutions; mould¬ 
ing them into conformity with new conditions, and obliging even 
the jurists, to whom is intrusted the expounding of Constitu¬ 
tions, to follow to some extent their guidance, and recognize, in 
some particulars, the finality of their adaptive force. 

THE TAXING POWER. 


Another Federal power has grown to enormous proportions 
without having in its development been kept so entirely within 
constitutional limits. When Chief Justice Marshall had 
occasion for critical examination of the power to tax, which was 
being put in force by one of the States against a Federal corpo¬ 
ration, he perceived, as by instinct, that its nature and purpose 
were such that in the exigencies of government it might be 
employed again and again until the subject of taxation was ex¬ 
hausted. In deciding the case before him, therefore, he uttered 
that famous truism that the power to tax is a power to 
destroy.” But it is, nevertheless, a life-giving and life-preserv¬ 
ing power, and for that very reason involves such tremendous 
possibilities, since the possible needs of government can 
no limith When, however, the time came that the interest of 
the nation was thought by Congress to require that the State 
banks should give way to a National system, and no express 
grant of the power to disjilace them was discoverable, this judi¬ 
cial aphorism that the power to tax is a power to destroy was 
seized upon for the purpose, and the life-giving power which 
exists for revenue purposes was seized upon and converted into a 
death-dealing power when revenue was neither sought for 
nor desired. This was a somewhat startling experiment in 
government, but it proved altogether successful, and the State 




10 


SOUTH CAROLINA BAR ASSOCIATION. 


banks of issue which fell before it had been so mischievous, and 
the substituted system proved so satisfactory, that people gave 
little heed to the question of Constitutional power. But the 
thoughtful mind must admit that the benefit that flows from a 
doubtful exercise of power increases the danger by increasing the 
probabilities of repetition. If State banks may thus be destroyed, 
why not State insurance or commercial corporations? And who 
can say that the destructive power in its manifestations must 
necessarily stop at corporations and may not be extended to con¬ 
tracts entered into or industries existing under State authority? 
It is fresh within our minds that at the recent session of Con¬ 
gress a proposal was made and urged to tax a business of consider¬ 
able magnitude out of existence, and though it failed, the very 
offer was important since it tended to familiarize the public 
mind with this extraordinary use of the taxing power and to in¬ 
crease the jirobability of success with similar proposals hereafter. 
But it is obvious that when public sentiment shall come to 
tolerate this method of summary extinguishment of State crea¬ 
tions, Congress will have at its command an irresistible means 
for strengthening and extending its authority, which the people 
were so far from having intended to confer, that it is not con¬ 
ceivable, when the history of the Constitution is considered, that 
they would ever have consented to yield it. The taxing power 
they give freely with all its x>ossibilities, but by thus ‘‘turning 
extreme medicine into daily food ” it becomes no longer a taxing 
power in the normal and true sense, but a general poAver to deal 
at discretion with obnoxious subjects. We may then be called 
upon to revise the definition of the taxing poAver, for it will no 
longer be what Chief Justice Marshall understood it to be, 
tlie poAver Avhich in its employment in raising revenue may in¬ 
cidentally kill, but a tremendous engine of destruction. 

“the public welfare clause.’’ 

Another aspect in Avhich the revenue power is of overshadoAving 
importance is equally manifest. When Ave see it employed for 
the purpose of protection, and when a new law or even a slight 
change in the old law may at any time make or mar the fortunes 
of thousands, hoAV insignificant to a business man of ambition 
and energy apj^ear all that the State can do for personal interest. 


ANKUAL ADDRESS BY HOiq". THOMAS M. COOLEY. 


11 


when compared with what is within the compass of the Federal 
authority! Naturally and most inevitably he comes to think of 
the General Government as the true source of all power. Not 
seldom we see in publications of large circulation references to 
what is called the ‘'^public welfare clause” of the Constitution, 
which unmistakably indicates that in some minds the impression 
prevails that Congress has been given unlimited power to legis¬ 
late for what it shall believe to be the general good. But a 
grant thus discretionary and unrestricted would be a grant of 
despotic power, and not only at war with the leading principle 
of the Federal Constitution, which limits both State and Federal 
authorities, but inconsistent with regulated liberty. The very 
suggestion of its existence ought, therefore, to be repelled 
instinctively as subversive of all Constitutional Government. 
Unfortunately it is more encouraged than repelled when some 
object of strong desire appears to be within reach of Congressional 
power. How far this, in the end, may prove mischievous cannot 
be foretold. At present we only perceive with distinctness that 
changes in our institutions to some extent are resulting. Every 
year the people, and especially the manufacturing and trading 
classes, come to look more and more to the National Capital for 
what enlists their interests and less and less to the Capital of 
their own State. Washington, after independence had been 
proclaimed, and during the trying period which immediately 
followed, found it necessary to make frequent complaints that 
some of the ablest men of the day — and among them 
Jeffersoh —would neglect National duties to take part in what 
seemed to them the more important affairs of their respective 
States. DeWitt Clihtoh, many years later, resigned the place 
of Senator in Congress to accept that of Mayor of New York, 
and JoHH Jay, Avhen head of the judiciary of the nation, laid 
off the ermine to become Governor of his own State. These are 
striking facts, but not likely to be repeated now. 

A trespass may easily ripen into a right, and the barest assump¬ 
tion may lay the foundation for a most solid and permanent 
authority. We may regret such a result, and it may be our 
duty to prevent it if possible, but the result must follow if the 
causes be allowed to operate. 


12 


SOUTH CAKOLIHA BAE ASSOCIATION. 


CHANCE THE LAW OF LIFE. 

Nothing, however, is more certain than this, that the human 
mind accepts with complacency the idea of change. Change is 
the law of life and it enters into all things, seen and unseen. 
The perfect days of June are all the more delightful for their 
promise of October’s transformations, and the features of the 
landscape on which the eye rests with calm satisfaction take in, 
in the subtle processes of the mind, new beauties as pleasing as 
they are indefinite. Childhood, charming in itself, is most 
charming for the future we see in it. The Roman matron who 
presented her manly hoys as her jewels, saw them, not as they 
were merely, but as in the maturity of their powers they were to 
be; and if perennial boyhood could have been offered them she 
would, on their behalf, have proudly spurned the doubtful 
blessing. The law is as general as it is beneficial that nothing 
can satisfy the mind that does not enlist the imagination; so 
that even Elysian Fields, that should be too perfect for change, 
would at the same time he too monotonous for desire. 

What is true everywhere else is true in what pertains to law 
and government. Insitutions so rigid and unyielding that they 
would stand unaffected by time or circumstances, when all things 
animate or inanimate, for which institutions exist, are perpetually 
renewing themselves under modified forms, and perpetually pre¬ 
senting to us a new world under new conditions, would be 
wanting in vital power because the affections of the people could 
not possibly embrace them. But in the nature of things such 
institutions would he impossible, unless for a people cut off from 
intercourse with the world, and with just that balance between 
mental energy and indifference which keeps it forever stationary. 
With even the most unprogressive people we see changes creeping- 
in as the doors for external intercourse are thrown open, and 
China itself, by yielding a little here and a little there, gives 
proof of the universality of the law. The most conclusive proof 
of all, however, must be given by the American people. Taking 
post in the formation of their Government in advance of all 
the nations, and assuming an unquestioned leadership in putting 
in force the principles of equal liberty, they claimed to be ^Gieir 
of all the ages” in whatever pertains to free thought and just 


ANNUAL ADDRESS BY HON. THOMAS M. COOLEY. 


13 


government, and the instructors of ages to come. The feeling 
of progress must, therefore, with them be spontaneous; the 
sensation of advance constant; they can never stand at gaze 
like Joshua’s moon at Ajalon.” They may reverence the past, 
they may contemplate with satisfaction the present, but there 
must underlying all be a faith in a more perfect future, and this 
faith will be of the sort that moves mountains. The most rigid 
institutions must, from year to year, yield something to it; the 
most inflexible Constitution, in the light of new and unexpected 
conditions, must present new phases and suggest new possibili¬ 
ties. Occasionally, no doubt, we shall modify the Constitution 
here and there by formal amendment, but if the general tendency 
of the political society shall be to the development of a higher 
and better national life, the Constitution, the outer framework, 
cannot possibly remain altogether stationary. 

THE GREATEST DANGER OF THE DAY. 

Indeed, at this point is one of our chiefest dangers; a danger, 
the full extent of which we are not likely to perceive, except as 
we consider it carefully, and with philosophical mind, unblinded 
by the brilliancy of a national career altogether unparalleled in 
history. America is the accepted representative of progress, and 
our pride in the fact closes our eyes to its perils, so that we come 
to feel that whatever is new is progression, and we fall into the 
tide without considering whether it floats us on our accustomed 
course or rises to the breakers; whether it pursues the course of 
safety or of destruction. 

It is not exclusively as they tend to magnify the Federal power 
that habits of thought are found to be productive of important 
changes. There may possibly be a revolution in the methods of 
government quite as important as any other, and if we observe 
with care the ordinary course of public business at the present 
day, we shall, perhaps, be forced to the conviction that a stage 
has been reached in our National history when the administra¬ 
tion of the Government in strict conformity to the constitutional 
intent has become impossible and when for that reason a de¬ 
parture to an extent that is revolutionary may thoughtlessly be 
tolerated. 

The United States is a representative Eepublic. Law-making 


14 


SOUTH CAROLINA BAR ASSOCIATION. 


is confided to delegates popularly chosen, who are to assemble as 
a deliberative body. Tt is the duty of each of the delegates to 
make himself acquainted with the merits of all proposed legisla¬ 
tion, and to take the advice and have the benefit of the judgment 
of his associates upon it. He is then to apply his own judgment 
to the question of its adoption. Ho member of the deliberative 
body can delegate the law-making function to another person, 
even though that other be one of his associates; but he in person 
must assume the responsibility. When the aggregate legislative 
judgment is expressed in solemn form, it is supposed to become 
law. There may, nevertheless, be still later a possible review 
by the Judiciary, the highest tribunal of which is an aggregate 
body, whose members are expected to bring to every controversy 
their individual judgments fully informed respecting it. Noth¬ 
ing short of this in cither legislative or judicial action can answer 
the requirements of the Constitution. 

EVILS IN LEGISLATION. 

At the close of the first session of the Forty-ninth Congress 
one of its leading and most experienced members is understood 
to have expressed very strongly his dissatisfaction with })ublic 
life and his desire to withdraw from it altogether. The reason 
for his dissatisfaction was that he had found it im])ossible to be 
useful to the country as he had wished to be in his legislative 
office. This is a most portentous fact if true, for the gentleman 
in question is a man of large intelligence and may justly be said 
to possess the confidence of the country to an unusual degree. 

The special discouragement which affected this gentleman 
concerned the power which a few men in Congress, by reason of 
their positions, were permitted to exercise in controlling its 
business. An illustration had occurred in his own case. At the 
request of one of the heads of department he had matured and 
introduced an important measure for the reorganization of that 
department, but, despite his most earnest endeavors, he could 
neither secure for it the attention of the House nor bring it to 
vote. This was not because the bill was objected to, but because 
the chairmen of the two leading committees of the House, for 
purposes of their own and to further the legislation in which 
they took more special interest, saw fit to interpose obstacles, 


ANNUAL ADDltESS BY HON. THOMAS M. COOLEY. 


15 


and under the rules of procedure their power was sufficient to 
make these obstacles etfectual. 

If the complaint thus made is well founded, we have illus¬ 
trated in a very striking manner the growth in Congress of 
powers unknown to the Constitution and out of harmony with 
its theory and purposes. It may appear still more plainly, how¬ 
ever, from another fact which may now be noticed. 

THE DESPOTIC POWERS OP THE SPEAKER. 

When the recent session of Congress was about coming to an 
end there were awaiting final action in the popular branch a 
great number of hills which had gone through all the prelimi¬ 
nary stages. This was not at all exceptional, but it was the 
customary condition of things when the adjournment approached. 
Some of the measures were of a public and some of a private 
nature, and each of them was in charge of some particular mem¬ 
ber, who, not only because of his interest in the measure, hut 
also for his own reputation for skill and success in his office, was 
solicitous to put it upon its passage. It was quite impossible 
that in the time at command all the bills thus circumstanced 
should receive attention, and the few that should first be called 
up would alone be voted on. In such a state of things there 
must be a struggle among the members for recognition by the 
Speaker, and the recognition will perhaps be solicited in advance 
as a matter of special favor. The absolute necessity of recogniz¬ 
ing some instead of others, when all are eager to catch the 
Speaker’s eye, enables that officer to discriminate between meas¬ 
ures; to permit any one at pleasure to be brought to vote, and 
for the time to defeat any otHer. This is a despotic power, and 
the Speaker, who by the theory of the Government is only one 
among a body of equals, is in fact enabled to exercise a veto more 
conclusive than the veto of the President. 

How is it that such a state of things has come to exist? Ap¬ 
parently it has sprung from the vast increase of legislative 
business, which renders it quite impossible that legislation should 
be considered after the deliberate and impartial method of early 
days. The increase is, in fact, so great that it has ceased to be 
expected that all measures will be deliberately considered and 
discussed, and the so-called debates in the popular house of 


16 


SOUTH CAROLINA BAR ASSOCIATION. 


Congress are for the most part a delivery of formal speeches to 
empty benches and for home use, at times when legislative busi¬ 
ness is actually suspended. That branch of Congress, at least, 
has, therefore, almost ceased to be a deliberative body. 

The vast increase in the business of Congress is best shown by 
giving figures from the session already mentioned. At that 
session there were introduced in the two Houses of Congress, of 
bills and joint resolutions, the enormous number of 13,414. 
These in general were referred to committees, and resulted in 
upwards of 5,000 reports. These statistics are appalling to one 
who has been accustomed to regard Congress as a deliberative 
body, whose members brought their judgments to bear upon 
every subject voted upon. He perceives at once that, to a large 
extent, one must confide in the conclusions of committees, and 
that even, as between committees, it may be necessary to give a 
precedence to those whose duties concern the public revenue. 
But legislation then becomes legislation by committees, not by 
Congress, and members formally assent to measures of whose 
wisdom they have no opinion. It is even expected that the 
President, in the last hours of the session, will delegate his legis¬ 
lative function in like manner; going down to the Capitol 
building to sign bills as they are passed without the opportunity 
for consideration. If he refuses to do this, as President Cleveland 
recently did, he will be called churlish. 

LOOSE WORK IN CONGRESS. 

Is it necessary to add that this vast aggregation of business, 
and the haste with which at last it is likely to be disposed of, 
invite carelessness in legislation, cause mischievous blunders, and 
open broad doors to corruption? When a measure can receive 
the attention of a few of the members only, the few are likely to 
be those who have special, perhaps personal, interest in its 
passage. If it be a private bill, some single member is likely 
to stand to the beneficiary in the relation of agent or attorney, 
and will prepare the case on which the committee is expected 
to report. If he possesses the confidence of the committee 
the case may be aecepted without examination as presenting 
the true facts, and it may happen that upon a favorable report 
of the committee a measure will be adopted, when the only 


ANNUAL ADDRESS BY HON. THOMAS M. COOLEY. 


17 


member having sufficient acquaintance with the facts to pass 
judgment upon them is the very member whose judgment, by 
reason of his interest, ought not to be taken. A case actually 
occurred at the recent session of Congress in which a member 
justified his making a report of a committee and assuming to 
speak for it without its direction on the ground that he alone 
of its members had looked into the facts. But under such 
circumstances, if the report had been acted upon as was in¬ 
tended and the measure adopted, the legislation would not even 
have been legislation by committee, since it would have ex¬ 
pressed the judgment of a single member only. The same 
session furnislied some striking illustrations of the need of 
greater care; one bill having passed both Houses which was an 
exact duplicate of a law then on the statute books and which 
every member had overlooked. Two other bills were passed 
for the allowance of private claims which had previously been 
allowed and paid, the evidence being on file in the proper 
office where it would have been found had the claims gone for 
examination to some suitable accounting officer or board. One 
of the two had been paid under a previous special act which 
Congress had overlooked, though the claimant could hardly have 
done so. Btill another bill was to pay for the military equipment 
and time as though he had been a soldier in the civil war of a lad 
of twelve, too young, as all must see, for military service, who 
was permitted to play soldier as camp pet for a year—never 
enlisting and never being attached to any regiment—the whole 
performance being a boy’s way of having enjoyment at the fine 
mess-table, never imagining at the time that the day would ever 
come when the assembled wisdom of the Nation would seriously 
propose to make him a gratuity for thus taking a long holiday at 
Government expense. 

The cases here mentioned do not necessarily reflect upon the 
wisdom or just purposes of Congress, but they show very clearly 
the dangers of legislation under the whip and spur of a lash that 
outstrips deliberation. 

But it is no more true that the Legislature is overwhelmed 
with business than that th6 Judiciary is. It was the solemn 
pledge of Magna Charter that justice should neither be denied 
nor delayed. But it is a matter of common observation tliat 
justice in the Federal Courts, by reason of the vast accumulation 
2 


18 


SOUTH CAROLINA BAR ASSOCIATION. 


of business, is now delayed to an extent that amounts to practical 
denial in many cases. Much of this accumulation has come 
from the great extension of Federal jurisdiction for temporary 
reasons growing out of the civil war, and perhaps the ste])S then 
taken ought in a measure to be retracted; but to retreat would 
be to breast a current still setting strongly in the same direction, 
and, if possible, is certainly not easy. 

THE DANGERS OF THE FUTURE. 

The condition of things, legislative and judicial, here brought 
to notice is likely to increase in difficulty with the growth of the 
union in States, in population, in business and in wealth. We 
shall be led further and further away from Constitutional forms, 
methods and principles, and possibly into dangers at present un¬ 
known and unsuspected. The dangers apparent are, however, 
sufficiently serious to challenge thoughtful and considerate atten¬ 
tion. 

It was said of the Roman empire in the period of Constantine 
that its Government was a Government of eunuchs. These 
creatures filled the Palace and surrounded the Emjieror, so that 
access could be had to him only by their favor, and the represen¬ 
tations upon which he acted were such as they saw fit to put 
before him. A similar state of things is likely to exist in any 
considerable country governed by a single ruler, since there 
must be an absolute impossibility in the ruler giving personal 
attention to all the subjects requiring it. Powers unknown to 
the Constitution of the country will then not unlikely, though 
hiding behind the throne, be greater than the throne itself. 

A country possessing representative institutions may reasonably 
ho 2 ie to escape any similar i)cril; but when the demands upon its 
Government become too great to be met in a Constitutional way, 
the peril is upon it. It is quite as possible for an aggregate body 
of popular delegates to subordinate their wills and their judg¬ 
ments to a seeming necessity in Government as for a prince to do 
so, and the liability to an improper control is as great in the one 
case as in the other. Whether the improper control shall be by 
a small part of the governing body or by those in no way con¬ 
nected with it is of less importance than the main fact that 


AN'NUAL ADDRESS BY HON^. THOMAS M. COOLEY. 19 

Constitutional powers are improperly controlled, and the patriotic 
sentiment will seek for a remedy in the one case as earnestly as 
in the other. 


NO ROOM FOR PRIVATE LEGISLATION. 

The most conspicuous evil now attending National legislation 
springs from the vast aggregation of business demanding the 
attention of Congress, and leading in the end to a pressure upon 
the other departments of the Grovernment which they cannot 
well sustain. To correct this, at least in part, two measures of 
relief are available: 

1. The power now exercised by Congress to pass bills for the 
relief of individuals should, as far as may be found practicable, 
be taken away. 

Of the bills passed at the recent session near 700 were of this 
class. If we suppose they receive proper attention they must 
have monopolized a large share of the session. But more than a 
hundred of them were vetoed by the President upon the ground 
that the facts upon which Congress had acted made out no 
equities. Had these bills received the attention which, accord¬ 
ing to the theory of representative institutions they are supposed 
to receive, the probabilities would be very strong that Congress 
was right and the President wrong in the view taken by them 
respectively; but when the actual course of business in Congress 
is borne in mind, the probabilities seem quite the other way. 

Now, even if the demands upon the attention of Congress 
were not so great as they are, it would be obvious that it could 
not deal wisely and well with private claims, whose equities are 
only to be brought forward upon evidence. A legislative body is 
almost as much unfitted for the proper investigation as it is to 
try private controversies, and for precisely the same reasons, they 
ought not, therefore, to be entrusted to Congress at all. So firmly 
have the people of some of the States been convinced that legisla¬ 
tive bodies ought not to deal with private claims that they have 
by their Constitutions forbidden its being done, and the prohibi¬ 
tion is never regretted. The alternative of a Court of Claims or 
a Board of Audit acting under general rules is found to be the 
better way. It must be very rare, indeed, that a deserving case 
will arise which is so peculiar in its equities as to require special 


20 


SOUtH CAROLINA BAR ASSOCIATION. 


legislative attention. Most of the recent relief bills passed by 
Congress have been bills granting pensions. But no one ques¬ 
tions that pension cases ought to be provided for by general 
rules, to be applied by some proper known Board or Court. 
Special investigations into facts is required in nearly every case, 
and it is notorious that even with competent and careful officers 
giving attention exclusively to the subject, frauds are not always 
prevented. They are generally facilitated wlien the jurisdiction 
is assumed by a large body which, by its very size and organiza¬ 
tion, is unfitted for the necessary investigations. 

If the business of Congress is hastily or unintelligently per¬ 
formed, we come at last to lose our respect for that body. If its 
method of procedure favors fraud and corruption, we, perhaps, 
suspect corruption in its members, and the public press, if an 
opportunity seems to offer for political advantage, or perhaps 
even for sensational purposes, will make positive charges which 
the public may accept as true. But this is to lose our respect 
for the law at its very fountain, and no greater calamity than 
this could possibly befall us. There can be no inherent strength 
in any Government whose laws are not received by the people as 
probably sound and well-considered, or whose decrees are not 
spontaneously accepted as presumptively wise and just. 

It must be expected also that upright men, careful of tlieir 
reputation, will hesitate if they do not altogether decline to give 
their services to the })ublic in a legislative body whose work must 
necessarily, to a large extent, be poorly done, and in which 
management and assurance are likely to count for more than 
solid ability. Corrupt men, on the other hand, will crowd for¬ 
ward to occupy such places, beeause they well know that when 
results prove unsatisfactory abuse is likely to be general, and the 
public will have little ability, and perhaps as little inclination, 
to distinguish between those who do and those who do not deserve 
it. And right here, it may be remarked, is to be seen one of the 
chief reasons why municitial goverment has so very generally 
become corrupt. The general and indiscriminate eharge of cor¬ 
ruption against municipal officers, while it fails to establish 
particular offences against individuals, keeps integrity at a dis¬ 
tance, and thus begets the corruption it charges. 


ANNUAL ADDRESS BY HON^. THOMAS M. COOLEY. 


21 


LEGISLATION OUTSIDE THE CONSTITUTION, 

2. We ought very carefully to avoid burdening the attention 
of Congress with propositions for legislation not within its Con¬ 
stitutional powers. 

The habit of mind already mentioned, which magnifies unduly 
the Federal jurisdiction and power, is sometimes an evil of 
considerable magnitude, even when it results in no improper 
legislation. Here, again, we may take an illustration from the 
recent session of Congress. The member having it in charge 
was quite unable to secure attention to a bill for the reorganiza¬ 
tion of the Navy, but weeks were spent in discussing a bill in 
aid of State education—a subject which had no business in 
Congress at all. Other bills equally foreign to the Federal juris¬ 
diction were introduced, referred and discussed. Now, when a 
bill is brought before Congress with which that body has no 
proper concern, a wrong is done to representative institutions, 
even though in the end it fails in adoption. The wrong is 
multiform; it increases an existing mischievous tendency; it 
strengthens and perpetuates an erroneous habit of thought; it 
withdraws from Federal concerns much needed attention, and 
the mischief is not limited to representative institutions of our 
own country, because whatever injuriously affects them puts all 
such institutions to a new trial at a time and under circumstances 
when the strain upon them seems already to be as much as they 
can well sustain. 

One of the most intelligent and thoughtful of the writers on 
institutions, best known to us as the author of the Treatise on 
Ancient Law,’’ has recently, in some very striking essays, ques¬ 
tioned, on historical probabilities, the likelihood of the useful 
duration of popular institutions. Eeviewing to some extent 
their early history, and casting his eye over the nations of 
Christendom which have endeavored with little or no success to 
establish them, he sums up his conclusions as follows: ^‘It is 
not too much to say that the only evidence worth mentioning of 
the duration of popular government is to be found in the success 
of the British Constitution during two centuries under speeial 
conditions, and in the success of the American Constitution 
during ojie century, under conditions still more peculiar and 


22 


SOUTH CAROLINA BAR ASSOCIATION. 


more unlikely to recur.” And he proceeds to give reasons why, 
as regards the British Constitution, ‘^that nice balance of 
attractions which caused it to move evenly on its stately path, 
is perhaps destined to he disturbed.” What the writer says is 
not easily disproved, and others besides himself, though sup¬ 
porters of popular government, have feared it might be every¬ 
where approaching a calamitous crisis. But whoever considers 
the differences in race peculiarities and perceives that every 
people must have a development of institutions in its own way 
and according to its own genius and tendencies, will be slow in 
drawing lessons in Government for one people from the ex¬ 
perience of others having characteristics essentially different. 
He will, therefore, judge of the probabilities of stable popular 
Government among English-speaking people upon the evidences 
supplied by their own experience. It is highly probable that the 
American people have been altogether too ready to assume that 
the political liberty which was good for them was equally good 
for all mankind, and that through the ages in the history of 
every people might be traced an aspiration for popular Govern¬ 
ment which in time must have full realization. But while we 
have been pleasing ourselves with such a fancy, current events 
have visited upon us many disappointments, until we are forced 
at last to the conclusion that we shall be wise if we speculate less 
upon the possible attainments in government of other people, 
and devote more careful thought to perfecting and preserving 
what has been done for ourselves. 

All Americans, it may be assumed, desire to render complete 
the success of their experiment in popular Government. To do 
this it is necessary to hold as closely as possible to the principles 
upon which it was founded and which have attended its develop¬ 
ment. It is not sufficient to preserve forms if the substance 
escapes them, and it is plain that the substance of popular insti¬ 
tutions is gone when the substantial power of the representative 
body has passed to the hands of a few of its members, or possibly 
to some external managing body. That to a considerable extent 
this is already the case we are compelled to admit, and when the 
excuse is advanced that in the nature of things this has become 
inevitable, the excuse, instead of relieving our anxiety, only 
quickens our fears and chills our hopes. 

This is unavoidable, because the apparent necessity accustoms 


ANNUAL ADDRESS BY HON. THOMAS M. COOLEY. 


23 


the people to look with complacency upon crude and imperfect 
legislation, upon allowance of unmeritorious claims, upon frauds 
and upon the exercise of extra-constitutional and arbitrary 
authority. It begets a habit of thought which excuses evils of 
all sorts in government and tolerates in many cases the assump¬ 
tion of despotic powers. It is impossible to overrate the 
significance of these tendencies when we reflect that institutions 
spring from or are moulded by the habits of thought of the 
people, and that unwarranted acts which are generally excused 
will in time become the precedents whereby the rightfulness of 
official authority will be gauged and determined. 

THE DUTY OF THE LEGAL PROFESSION. 

The legal profession of the country stand at the portals of the 
future, charged with the duty of protecting the Constitutions, 
National and State, under which they exercise their functions as 
ministers of justice, and which constitute at once the defence of 
individual liberty and the guaranty of public order. It is a 
solemn and very onerous duty, and requires for its performance 
a careful and conscientious study of the emergencies of govern¬ 
ment as from time to time they arise. What these emergencies 
may require or demand cannot in advance be forseen, but the 
general obligation to do whatever may be possible to preserve 
Republican institutions in their integrity is plain, and if kept 
steadily in view will lead to safe results. In a few particulars, 
however, the obligation may be more definitely ascertained. 

Accepting, as we must, the fact that modifications of the 
fundamental law are inevitable, it is a plain duty to restrict them 
as far as possible to the precise method agreed upon when the 
Constitution was formed, that is to say, to amendments duly 
formulated and regularly adopted. By this method alone is it 
certain that the system of liberty which has come down to us as 
a precious legacy may be preserved. When changes are volun¬ 
tarily suffered to creep in by other ways, we cultivate a habit of 
mind which saps the foundation of our institutions and sets us 
afloat upon a sea of uncertainty without definite landmarks, 
where the most reckless and pushing is likely to be most influen¬ 
tial and the most presumptuous, by the mere force of assurance, ^ 
may sieze upon the helm and boldly steer the course a mon g 


24 


SOUTH CAROLINA BAR ASSOCIATION. 


unseen dangers. But unless we are prepared to put the wisdom 
of the past behind us as foolishness, we shall never forget that 
the liberties we enjoy have been worked out for us through a 
succession of ages, by keeping the old landmarks steadily in view 
and by holding firmly to the teachings of experience. We have 
no warrant in history for an assumption that by a different road 
we should have reached the same advanced and enviable position. 

Especially should every insidious change which threatens to 
creep in by usurpation of authority be met at the threshold and 
sturdily resisted. Any such change will owe its accomplishment 
either to general ignorance among the people regarding the 
fundamental principles of government, or to general indifference. 
In either case it would be evidence of a condition of things which 
would render the public mind fallow ground for the seeding of 
wild speculation and fanciful experiment, and especially for that 
wildest of all notions, that whatever is new is probably pro¬ 
gressive and should therefore, for its very novelty, be welcomed 
and embraced. 

This subject addresses itself with peculiar force to the legal 
profession. Ui)on that profession must the country in the main 
depend for keeping fresh in the minds of the people the vital 
truth that within the general landmarks of the Constitution 
must be found, not only the securities of liberty, but the true 
and only reliable guarantees of progress. And here the duty of 
patriotism is as obvious as it is imj^ortant. We cannot pass it 
by without justly exposing ourselves to the charge of neglecting 
imperative obligations. The sentiment of patriotism, when 
wisely informed and strengthened, will not fail to hold in close 
and ardent embrace that admirable system of local. State and 
Federal Government which was founded by the fathers, and 
which is admirable as a whole in so far as it is kept strong, 
vigorous and efficient in all its parts and all its gradations. 

Especially, also, should the tendency to the casting upon the 
representative institutions of the nation a burden they cannot 
bear without mischief, be carefully corrected as far as may be 
found possible, and efficiently guarded against for the future. 
We have already indicated the necessary means to this end. A 
clearer apprehension of the legitimate scope of Federal powers 
should be cultivated, and the attention of Congress should cease 
to be diverted from the proper objects of Federal jurisdiction; 


ANI^^UAL ADDRESS BY HON. THOMAS M. COOLEY. 


25 


and concurrent with this the overburdened Legislature should 
be restricted to the duty of making laws proper, and should no 
longer be allowed to undertake the adjustment of claims or the 
determination of individnal equities in cases where it is possible 
to make general laws available. 

Finally, the habit of mind which consents to the doing of con¬ 
stitutional wrong, when it is supposed some temporary good may 
be accomplished, should be recognized as a foe to constitutional 
limitations and securities, and whicli therefore, at any cost, must 
be corrected. 

These matters do not concern us alone, but they concern the 
world. In matters of government, America has become the 
leader and the example for all enlightened nations. FiugbnMl 
atuh Franoe look across the ocean for lessons which may 

inform and guide their people. iind -isipaMi follow more 

distantly, and the liberty-lqving people of every country take 
courage from American freedom, and find augury of better days 
for themselves in American prosperity. But America is not so 
much an example in her liberty as in the covenanted and endur¬ 
ing securities which are intended to prevent liberty degenerating 
into license, and to establish a feeling of trust and repose under 
a beneficent government, whose excellence, so obvious in its 
freedom, is still more conspicuous in its careful provision for 
permanence and stability. 
















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The Third Annual Meeting of the SCStTTfil, 
CAROLINA BAR ASSOOIATIOH will he held 
in Colnmhia, on Wednesday, 7th Decemher, 
1887, beginning at 8 o'clock P. M. 

WH. H. PARKER, 

W. C. BERET, President. 

Secretary, 


AhheYille, S. 0. 






